Statutes of Limitations

A medical malpractice action against any health care provider must be brought within two years of the date when the injury was or should have been discovered, with a maximum limit of four years after the negligent act. Utah Code Ann. § 78-14-4 (1996). Notwithstanding the four-year statute of repose, an action based on a foreign object retained in the body may be brought within one year of the date when the object was or should have been discovered. Id.; Day v. Meek, No. 970562, 1999 WL 169899 (Utah March 30, 1999). The statute is intended to apply to all persons, including minors and those under a legal disability, but both the two-year and four-year limitations have been held to violate the Utah Constitution as they apply to minors. Lee v. Gaufin, 867 P.2d 572 (Utah 1993).

Although Utah has a statute of limitations for wrongful death, Utah Code Ann. § 78-12-28 (Supp. 1998), the medical malpractice statute of limitations applies to wrongful death cases arising from medical malpractice. Jensen v. IHC Hospitals, Inc., 944 P.2d 327, 332 (Utah 1997).

Contributory or Comparative Negligence

Utah has adopted a modified form of comparative negligence. Utah Code Ann. § 78-27-38 (1996), amended by Comparative Negligence Allocation Act, ch. 95, § 2, 1999 Utah Laws 370. Under this doctrine, a claimant's action is barred only if his fault equals or exceeds the combined fault of all defendants and all persons immune from suit. However, Utah's system of several liability based on fault, as described in the next section, Joint and Several Liability, has the effect of reducing a claimant's recovery in proportion to his degree of fault.

Joint and Several Liability

Utah has eliminated joint and several liability. Utah Code Ann. § 78-27-38 (1996), amended by Comparative Negligence Allocation Act, ch. 95, § 2, 1999 Utah Laws 370. A defendant is not liable for any part of damages that exceeds his proportion of fault. The fault of persons who are immune from suit is considered by the jury in this calculation, id., but the share of the immune persons is reallocated to the defendants if it totals less than 40 percent. Utah Code Ann. § 78-27-39 (1996), amended by Comparative Negligence Allocation Act, ch. 95, § 3, 1999 Utah Laws 370. The most recent amendment to § 78-27-39, which is retroactive to March 3, 1998, makes clear that fault is to be assigned to responsible persons even if they are not defendants. Id. This legislatively overrules a Supreme Court decision of that date holding that the fault of non-parties (except for immune persons) should not be considered. Field v. Boyer Co., 952 P.2d 1078 (Utah 1998).

Contribution

Because there is no joint liability, a defendant in a tort case is not entitled to contribution. Utah Code Ann. § 78-27-40 (1996). However, such a defendant may join other responsible parties as defendants in the original action, and may identify non-parties whom the trier of fact should consider when allocating fault. Utah Code Ann. § 78-27-41 (1996), amended by Comparative Negligence Allocation Act, ch. 95, § 4, 1999 Utah Laws 370.

Vicarious Liability

Utah courts have not addressed the issue of whether a hospital may be liable for the negligent acts of its non-employed physicians. However, in Butterfield v. Okubo, 831 P.2d 97, 100(Utah 1992), the Supreme Court of Utah noted with apparent approval a plaintiff's acknowledgment that hospitals are not liable for the negligent acts of doctors who are independent contractors. A federal district court in a diversity case found no Utah cases on point, but rejected as a matter of law an attempt to hold a hospital vicariously liable for the acts of a radiologist independent contractor. Tolman v. IHC Hospitals, Inc., 637 F. Supp. 682 (D. Utah 1986).

Expert Testimony

Utah has no statute requiring that complaints for medical malpractice be accompanied by a supporting expert opinion. However, a claimant must present expert testimony at trial to establish that the health care provider's conduct fell below the standard of care, unless the facts are within the understanding of a layman. Chadwick v. Nielsen, 763 P.2d 817, 821-822. (Utah Ct. App. 1988).

Damage Caps

In a medical malpractice action, non-economic damages (those for pain, suffering, and inconvenience) may not exceed $250,000. Utah Code Ann. § 78-14-7.1 (1996).

Statutory Cap on Attorneys' Fees

An attorney representing the plaintiff in a medical malpractice action may not collect a contingency fee that exceeds one third of the amount recovered. Utah Code Ann. § 78-14-7.5 (1996).

Periodic Payments

If the amount awarded for future damages in a medical malpractice case exceeds $100,000, exclusive of attorneys' fees and costs, then the court must, at the request of any party, order that these be paid periodically rather than as a lump sum. Utah Code Ann. § 78-14-9.5 (1996). Adequate security must be provided. Except for amounts awarded to compensate for lost earnings, future payments stop when the plaintiff dies. Id.

Collateral Source Rule

After the verdict in a malpractice case, the court hears evidence and reduces damages by amounts paid to the plaintiff from collateral sources, offset by amounts plaintiff or his family paid to secure those benefits. There is no reduction for collateral payments from payors with rights of subrogation. Utah Code Ann. § 78-14-4.5 (1996). Although the court does not make any reduction for future collateral source benefits, the trier of fact may consider evidence of possible future benefits from government programs when it determines damages. Id.

Pre-Judgment Interest

Personal injury claimants are entitled to pre-judgment interest on "special damages actually incurred" from the date of occurrence to the date of judgment. These do not include damages for future medical expenses or loss of earnings. Utah Code Ann. § 78-27-44 (1996). The current rate of interest is ten percent. Utah Code Ann. § 15-1-1 (1996).

Patient Compensation Funds and Physician Insurance

Utah does not have a patient compensation fund, nor does it require physicians to carry malpractice insurance.

Immunities

Claims against governmental entities and their employees are governed by the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to 63-30-38 (1997 & Supp. 1998), which covers political subdivisions such as cities and counties, as well as the state and its agencies. Utah Code Ann. §§ 63-30-2 (1997). This contains a broad grant of immunity that includes every "governmentally-owned hospital, nursing home, or other governmental health care facility," Utah Code Ann. § 63-30-3 (1997), and also exempts employees acting in the scope of their employment from personal liability except for fraud or malice. Utah Code Ann. § 63-30-4 (1997).

The foregoing is largely moot, however, because in most cases Utah Code Ann. § 63-30-10(1) (1997) waives immunity for injuries proximately caused by the negligent act or omission of an employee committed within the scope of employment. Therefore, in medical malpractice cases against governmental entities, the most relevant consideration is the cap on damages that can be collected from a governmental entity in cases where the government is not immune. This is set at $250,000 per person and $500,000 per occurrence. Utah Code Ann. § 63-30-34 (1997). These damage caps have been held to be unconstitutional as they apply to the University of Utah Hospital in Salt Lake City. Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989).

There are procedural restrictions on actions against governmental entities, including the requirement of notice within one year of the time the claim arises. Utah Code Ann. §§ 63-30-11 to 63-30-13 (1997 & Supp. 1998). Governmental entities are immune from punitive damages. Utah Code Ann. § 63-30-22 (1997).

Health care professionals have immunity from liability for care provided gratuitously at the scene of an emergency, unless they have a legal duty to respond. Utah Code Ann. § 58-13-2 (Supp. 1998). This immunity can even extend to a doctor responding to an emergency in the hospital that employs him, so long as this was not one of his duties. Hirpa v. IHC Hospitals, Inc., 948 P.2d 785, 792 (Utah 1997). Health care professionals have a qualified immunity for care provided without remuneration at a charitable clinic. Utah Code Ann. § 58-13-3 (Supp. 1998).

Arbitration

The Utah Health Care Malpractice Act provides for the compulsory filing of a notice of intent to commence an action and for review by a prelitigation panel (except in dental cases). Utah Code Ann. §§ 78-14-8 (1996) and 78-14-12 (Supp. 1998). The proceedings are informal and a panel's opinion about whether the case is meritorious is not only nonbinding, but inadmissible in the following lawsuit. Utah Code Ann. §§ 78-14-13 to 78-14-15 (1996). The parties may agree to waive the hearing or to convert it to binding arbitration. Utah Code Ann. §§ 78-14-12 (Supp. 1998) and 78-14-16 (1996).

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